In Re Er

California Court of Appeal Oct 21, 2010 No. A124706Published

Before: Pollak

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Holding. The juvenile court erred by changing its initial finding of second-degree murder to first-degree murder based on a misinterpretation of People v. Cortez, as a defendant can be convicted of conspiracy to commit murder while the substantive murder offense is found to be second degree.

Issues

Whether a juvenile court may change a verdict of second-degree murder to first-degree murder based on a finding of conspiracy to commit murder.
Whether a finding of conspiracy to commit murder legally mandates a finding of first-degree murder for the substantive offense.

Disposition. remanded

Quotations verified verbatim against the opinion

“we conclude that the juvenile court erred when it changed its verdict on the murder charge.”

“a person can conspire to commit first degree murder but nonetheless commit a murder under circumstances that were not contemplated and which amount to no more than murder in the second degree.”

“Whether a murder that does occur was premeditated or was prompted by circumstances meeting the criteria of second degree murder is a question of fact, not one of law.”

189 Cal.App.4th 466 (2010) 117 Cal. Rptr. 3d 192 In re E.R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent,

E.R., Defendant and Appellant.

No. A124706. Court of Appeals of California, First District, Division Three.

October 21, 2010. [467] Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Christopher W. Grove, Deputy Attorneys General, for Plaintiff and Respondent.

Lisa M. Romo, under appointment by the Court of Appeal, for Defendant and Appellant.

CERTIFIED FOR PARTIAL PUBLICATION[*]

OPINION

POLLAK, J.

This is one of four appeals now before us arising from a single trial in which wardship and commitments to the Division of Juvenile Justice (DJJ) have been imposed on four minors for their roles in a gang-related shooting in which one innocent youth was killed and another wounded.

[468] On March 16, 2007, Antwanisha Morgan, Thomas J.,[1] Antoine S., Chante P., and other young people were talking outside a recreation center in the Bayview District of San Francisco. About a month earlier, some of these youths (not identified as members of any gang) had chased members of the G-3 criminal street gang away from a talent show at the recreation center where the gang members had started a disturbance. On March 16, three members of the G-3 gang, T.Tr., E.R., and D.B., returned to the center and two of the three shot at the group of youths that were congregated there, killing Antwanisha and wounding Thomas J. Immediately after the shooting, all three drove off in a waiting car driven by Kamisha Gray and occupied by two other gang members, T.Tu. and another youth. An expert on criminal street gangs testified that he believed each of the four accused minors was a member of the G-3 gang, and that the shooting was in retaliation for the prior incident at the talent show and an attempt to rehabilitate the reputation of the gang by instilling fear in the community.

In Re Er

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OPINION

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DISCUSSION

DISPOSITION

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